Law Commission Recommends Abolition Of Death Penalty Except In Terrorism Cases And Waging War

MUMBAI, INDIA - JULY 28: Members of Committee for the Protection of Democratic Rights protest as they demand abolishment of death penalty of Yakub Memon at Dadar on July 28, 2015 in Mumbai, India. Yakub, the lone 1993 Mumbai blasts death convict, may not hang on July 30 after the Supreme Court on Tuesday referred a petition challenging his death warrant to a larger bench following a split verdict by a two-judge bench. On Tuesday, Yakub also filed a fresh petition challenging the validity of the SC's July 21 order rejecting his curative petition. Yakub can now be hanged only after the SC rejects his petition - unlikely to happen by July 30, when he is scheduled to be executed at the Nagpur Central Jail, the day he turns 53. Yakub, a chartered accountant and the only well-educated member of the Memon family, was found guilty of criminal conspiracy, arranging money for buying vehicles used by the bombers and organising air tickets to Dubai for some of them. (Photo by Pratham Gokhale/Hindustan Times via Getty Images)

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NEW DELHI -- The Law Commission of India today recommended the abolition of the death penalty except in terrorism related offences and waging war.

In its 218-page report to the central government, the Law Commission said, "In retaining and practicing the death penalty, India forms part of a small and ever dwindling group of nations."

"Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences," the report said.

"The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war," it said.

The death penalty has always been a furiously debated and highly controversial form of punishment in India, and the recent hanging of 1993 Mumbai blast convict Yakub Memon polarised the nation on the utility of such executions in the world's largest democracy which stakes claim to a vibrant human rights tradition.

While highlighting its futility as a deterrent, death penalty critics have argued that poorer convicts are more vulnerable because they can't afford a good defence, and there is always danger of political, social and religious biases creeping into the decision-making process.

The debate which followed Memon's hanging became politically charged after Congress Party leader Shashi Tharoor said that the state should not be "reducing itself to the level of murderers and terrorists by taking human life?," and Finance Minister Arun Jaitley said that it irresponsible of him to call Memon's execution "state sponsored killing."

Jaitley acknowledged that the death penalty debate is "legitimate," but he said, "because of the advent of terrorism in India, we are still not in a position to abolish the death penalty."

The recommendation to abolish death penalty also contradicts recent changes in anti-rape laws, which provide life imprisonment or death for repeat offenders convicted of rape and gang rape. Laws dealing with sexual offences were toughened after the brutal gang rape and murder of a physiotherapy student in Delhi in December 2012 led to an outpouring of public outrage and massive protests in the national capital.

In September 2013, the four men convicted in the Delhi Gang Rape case were sentenced to death. In April 2014, a Mumbai court sentenced to death three men who were convicted in two separate instances of gang rape - invoking for the first time the death penalty provision for repeat offenders.

The Law Commission said today that the notion of "an eye for an eye, tooth for a tooth" has no place in the Indian criminal justice system, and endorsed the long-standing abolitionist position that the death penalty is not a deterrent.

"The death penalty does not serve the penological goal of deterrence any more than life imprisonment," the report said.

"That 140 countries are now abolitionist in law or in practice, demonstrates that evolving standards of human dignity and decency do not support the death penalty," it said.

The Law Commission noted that over the past decade, the Supreme Court had expressed concern over "arbitrary sentencing in death penalty cases," and also recognised that the administration of criminal justice in the country is in deep crisis."

"Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system," the report said. "Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication."